Mens rea


  1. Intention


The Basics

Mens rea is the part of an offence relating to the defendant’s blameworthy state of mind when committing the actus reus.


Basically, it’s about intention. For example, the mens rea of murder is intending either to kill or cause grievous bodily harm to any person.


There are two other main ways in which someone can be legally blameworthy: Recklessness and negligence. A defendant is reckless if he unreasonably takes a foreseeable risk. A defendant is negligent if he fails to do something that was reasonably expected of him.


These forms of mens rea sit in a hierarchy of culpability. The highest form of culpability is intention.


Direct Intention

The law on the meaning of ‘intention’ is quite inconsistent, so it’s easy to get lost quickly. But for this very reason, if you can wrap your head around it, it yields high marks for those brave enough to discuss it in any depth.


Step one is getting to grips with what’s agreed. It is agreed that a person intends a result (actus reus) if it is his purpose to achieve it.


Distinction between purpose and desire

Purpose is determined by the defendant’s subjective state of mind (Hayes v Willoughby [2013] UKSC 17). But his subjective state of mind is not the same thing as his desires or wishes. This might seem like an artificial distinction, but it makes more sense when you think about the defence of duress, which relies on it.


The distinction is further highlighted by mercy killings.


The takeaway is that the focus of the law is on purpose, not desire. Reference to the defendant’s wishes should be avoided as part of the mens rea analysis.


 Distinction between motive and intention


Motive is often the smoking gun behind a prosecution’s case. It’s easy to see why. People don’t normally act without a motive. People don’t usually spontaneously murder. Often there’s an underlying context of jealousy, revenge, financial gain and so on. Even psychopaths have a motive of some kind. For example, pleasure or sexual gratification.


There is an important difference. Motives can distil into intentions, but they are not legally equivalent. For instance, the mens rea of murder is an intention to kill or cause grievous bodily harm. It’s much more focused – more specific – to the alleged offence.



Put another way, a person may have the same motive to commit many different offences.

The long and short of it is that motive is irrelevant to mens rea (A-Gs Reference (No. 1 of 2002) [2002] EWCA Crim 2392), but it always relevant as evidence (Williams (1986) 84 Cr App R 299, CA).


Are there any exceptions to this? Yes, of course, this is law!

  1. Aggravated offences (Crime and Disorder Act 1998).
  2. Blackmail when evaluating whether the defendant’s demand was unwarranted (Chandler v DPP [1964] AC 763).
  3. Revenge prohibits a loss of control defence to murder.



Where a defendant plans – premeditates – a murder, then you’ll probably have solid evidence of his purpose. For example, there may be internet searches of how to dispose of a body, the purchase of a gun and so on. However, intention is much broader than premeditation. Most murders are unplanned so if the law only encompassed premeditation, then it would miss out whole swathes of the murdering population!


Oblique Intention

Direct intention is a straightforward relationship between purpose and intention. They are one and the same.



Oblique intention is a less common, more complicated variation. It’s trying to solve a problem – a gap – in the law on intention (MD [2004] EWCA Crim LR 890). The problem is best explained with an example.


The problem is that the defendant’s purpose i.e. his intention was to kill the spider is not the mens rea for murder. But burning down the house in which his family are sleeping is so obviously going to kill them that the law tries pin on him the mens rea for murder.


How exactly does the law do this? There are two things the prosecution needs to prove to show that that defendant has oblique intention (Woollin [1999] AC 82).

  1. A virtually certain consequence.
  2. Foresight that it is a virtually certain consequence.


Virtual certainty

Just how certain is ‘virtually certain’? If the prosecution’s case turns on oblique intention, then you can bet your bottom dollar that the probability of the consequences will be in issue at trial. A few comments on this should therefore feature in your answer.


In Moloney [1985] AC 905, the stepson shot dead his stepfather in a game gone wrong (or right?) of ‘quickest on the draw.’ The stepson loved his stepfather, but clearly neither of them had thought through the game very much. The stepson’s conviction was quashed because the direction given to the jury – that intention was satisfied if the consequence was probable – fell far below what is envisioned by oblique intention.


Instead, Lord Bridge said that virtual certainty means “little short of overwhelming.” He said the consequence ought to be “a certain event unless something unexpected supervenes to prevent it” (at 925-929). Think modern-day miracle level stuff.


In summing up, Lord Bridge used the phrase “natural consequence” to restate his position. This comes across as far more diluted terminology to that used throughout his judgment. In Hancock and Shankland [1986] AC 455, it was held that this was a defective way of representing Lord Bridge’s definition of virtual certainty. The overarching emphasis by Lord Bridge in Moloney is that virtual certainty is “little short of overwhelming.”


Foresight of virtual certainty is evidence of intention only

If the jury are sure that the defendant’s purpose was to kill or cause grievous bodily harm, then it is job done as far as mens rea is concerned. The jury must find intention.


The relationship between oblique intention and foresight of virtual certainty is not as prescriptive. A jury may find intention if there is foresight of virtual certainty, but it is not obliged to. The jury has “moral elbow room” (Horder (1995) 58 MLR 678, 688).


Case law, the Law Commission, and academics have gone back and forth on this for some time. There are two schools of thought.

  1. Foresight of virtual certainty is evidence of intention only (hence, “maybe”).
  2. Foresight of virtual certainty is intention.


The development of cases is as follows.


Firstly, in Nedrick [1986] 1 WLR 1025 it was held that foresight of virtual certainty is evidence of intention. This means that the jury can agree that there was foresight of virtual certainty, but nonetheless conclude that there is no oblique intention.


Later, the case of Woollin [1999] AC 82 complicated things. Lord Steyn said that “a result foreseen as virtually certain is an intended result.” This is the second school of thought. If the jury is satisfied of foresight of virtual certainty, then it is must find intention. This is inconsistent with Nedrick.


However, in the same case, the House of Lords said that if the jury find foresight of virtual certainty, then it “may also find [intention].” This is consistent with Nedrick.


Then Matthews and Alleyne [2003] 2 Cr App R 30 came along. It held that Nedrick is to be followed. Therefore, foresight of virtual certainty is evidence of intention.


How to approach proving mens rea


In practice, it’s a lot easier to prove the actus reus. This is because evidence of it is ‘out there’ – the post-mortem, the broken vase, the bruises. What’s harder to prove is the mens rea because it requires burrowing into the defendant’s internal state of mind.


As a result, there’s a debate about how to approach proving the mens rea.


Objectivists are fond of the ‘reasonable person’ test. Subjectivists prefer the ‘personal awareness’ test.


Which approach do the courts take then? Generally, the subjectivist approach. Why? Well, it was quite comically put by Lord Bingham in G [2008] UKHL 37 at [32] that a defendant “may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.” It is no surprise then that defences effectively founded on stupidity are commonplace!


The subjectivist approach is therefore the resounding approach of the courts. However, it remains open to Parliament to explicitly endorse the objective approach for certain offences. For example, the many offences in the Sexual Offences Act 2003.